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[Cite as Lawson v. State, (Tex. Crim. App.) 31 S.W. 645 (1895).]


(Court of Criminal Appeals of Texas. June 12, 1895.)

Carrying Weapons--Travelers.

A traveler who stopped on his way home, went to the house of a friend, and in the evening went out in the field and flourished his pistol, and afterwards went hunting and carried the pistol with him, is not afforded the protection of Pen. Code, art. 319, providing that article 318, prohibiting the carrying of arms, shall not apply to travelers.

Appeal from district court, Frio county; M. F. Lowe, Judge.

Tom Lawson was convicted of carrying a pistol, and appeals. Affirmed.

John T. Bivens, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J. The appellant was convicted of unlawfully carrying a pistol, and fined $25, and from the judgment of the lower court he prosecutes this appeal.

The appellant contends that he was a traveler when he was found carrying a pistol, and the court gave the charge on this subject which was prepared by his counsel, and was very liberal,--in fact, as applied to this case, more liberal than the law authorized. There is no question but that he was a traveler on his way home when he came to the house of one Parks, in Frio county, and stayed there over night, and while traveling, or engaged in any legitimate business pertaining to or connected with his journey, he had a right to carry said pistol. The evidence in this case, however, is undisputed that after he came to the house of Parks he went out, in the evening, to the field where one of Parks boys was working, and pulled his pistol out of his pocket and waved it over his head; and that night he and the Parks' boy went hunting, and he carried the pistol on the hunt. This is unlike the Price Case, 34 Tex. Cr. App. 102, 29 S.W. 473, where defendant was a traveler, and had gone from his home in Somerville county to Cleburne, where he loaded his wagon with lumber, and then went to a market to get some meat, as he expected to camp out that night on his journey home. He was arrested at the market for carrying a pistol, and this court held that the getting of the meat was a legitimate purpose, connected with his journey, and so reversed the case. In the Stilly Case, 27 Tex. App. 446, 11 S.W. 458, this court held that where defendant was traveling from the Indian Territory to Bloomfield, (p.646)in Cook county, after reaching Gainesville, and stopping at a wagon yard, and desiring to prosecute his journey in another conveyance from there to Bloomfield, went into town and to a livery stable, to see about hiring a team, he had a right to carry his pistol with him, as it was business connected with the prosecution of his journey. But when he departed from this business, and went to a gambling house, where he was found and arrested with a pistol, the court said the fact that he was a traveler afforded him no protection. Judge Wilson, in delivering the opinion of the court, said: "It would be an unreasonable interpretation of the intent of the law to hold that a person traveling might stop in a town or city, and idly stroll through its streets, and visit its gambling dens and saloons and public places, armed with a pistol. The practical result of such an interpretation of the statute would cause our cities and towns to be infested with armed men, while the citizens of such places would be prohibited from carrying arms to protect themselves from these privileged characters. We are of opinion, therefore, that the evidence does not show that the defendant, at the time he was found in the gambling house with the pistol upon him, was a person traveling, within the meaning of the statute. He was not then travelling, and he was not engaged in any business connected with his journey." And in this case the defendant, Lawson, when he went to the field of Parks, and when he went hunting, was not then engaged in traveling, nor was he doing anything connected with prosecuting his journey. He had diverted from the business of traveling into that of hunting, and he had no more right to carry a pistol on the hunt than Parks would have had, and surely it will not be contended if Parks went hunting off his own premises that he would have a right to carry a pistol. The statute[1] in this regard is intended for the protection of persons traveling, and has been construed to embrace any legitimate act or mission connected with the journey, or the prosecution thereof. But we are not inclined to give it a broader interpretation, so as to include the doing of acts not connected with the journey of such traveler.

The court gave a charge in this case which he had previously given in another case, which had been disposed of. The proper erasures were made, and insertions of number and name, so as to make same applicable to this case. The charge was appropriate to this case, and there was no error in this action of the court. In the view we have taken of the case, it is not necessary to notice other assignments. There being no error in the record requiring a reversal, the judgment is affirmed.

[1] Pen. Code, art. 318, prohibits the carrying of arms, and article 319 provides that "the preceding article shall not apply to * * * persons travelling."